An Illinois state supervisor accused of tormenting an underling
with sexual comments and innuendo may soon be back in charge of the
employee, after winning the first round of a sexual harassment suit.

The reason: The alleged harasser, the victim and the entire
work crew are men. And that, state lawyers successfully argued in
court motions, means it couldn't have been sexual harassment.

In an unusual case that could help clarify one of the hazier
areas of sexual harassment law, the male state worker is suing his
male supervisor on the ground that the crude and embarrassing
comments were a form of "same-sex sexual harassment."
A federal judge ruled against the worker last month. The case
is now in an appellate court, where, experts say, virtually
anything could happen.
"Sexual harassment suits between members of the same sex are
unusual, and the law is not at all clear," said William Schroeder,
professor of law at Southern Illinois University at Carbondale. "I
think it's something no one contemplated when sexual harassment
first started coming into the forefront in the 1980s."
Schroeder estimated that 90 percent of sexual harassment suits
are filed by women against men, with another 10 percent involving
men who allege harassment by women. As for same-sex harassment
suits: "If it's one-tenth of 1 percent, I would be surprised,"
Schroeder said.
The plaintiff, Illinois Department of Transportation employee
Jim Shermer, sued the state last year under the federal Civil
Rights Act of 1964.
The suit alleges that the supervisor, John Trees, created "a
sexually offensive and hostile work environment" at an IDOT
facility in Springfield, repeatedly making comments in front of
other workers indicating he believed that Shermer was a homosexual.
A federal judge in Springfield dismissed the suit in August, in
part because of the state's novel argument: As a man on an all-male
work crew, it was intrinsically impossible for Shermer to prove he
was the victim of sexual discrimination, a necessary component of
sexual harassment.
Shermer has appealed that ruling to a federal court in Chicago.
"It's an unusual case," acknowledged James Baker of
Springfield, the attorney representing Shermer. "But the law is
made on the basis of unusual cases."
Even as U.S. District Judge Richard Mills dismissed the suit
last month, he made it clear the issue was far from settled.
"If and when same-sex sexual harassment is actionable is an
issue that will ultimately be left to the courts of appeals and the
United States Supreme Court," Mills wrote. "Unfortunately . . . the
various courts of appeals have been slow to act and are divided."
`Offensive Banter'
Shermer was part of an IDOT building maintenance crew under
Trees. According to the suit, Shermer was singled out for a barrage
of verbal abuse for several months in mid-1993.
Trees "made sexually offensive remarks about the plaintiff in
his presence and in the presence of other employees," the suit
claims. "These remarks generally related to (innuendo about) the
plaintiff engaging in sexual acts with members of his own sex."
Shermer isn't gay, the suit says. He alleges he "suffered
emotional distress, damages to his reputation, embarrassment,
humiliation and other personal injuries" as a result of Trees'
behavior.
Shermer declined to comment last week, citing advice from his
attorney. …

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